Sitedrive General Terms of Service
These Terms (“Terms”) apply to the provision of Services, such as Software as a Service (SaaS) and Professional Services, by Sitedrive Oy (hereinafter “Service Provider”) to its customer (“Customer”).
These Terms will also be applicable in case a reseller of Service Provider is contracting the provision of Services with Customer and these Terms have been attached to or referred to in that contract. In such situation, the reseller is considered to be Service Provider under these Terms and the reseller assumes all rights and obligations of the Service Provider under these Terms towards Customer unless otherwise expressly stated in these Terms. In such a case Sitedrive Oy is not a contracting party with Customer and all communications and claims should be made to the reseller.
By signing or otherwise accepting the Service Agreement the Customer accepts these Terms, which form an integral part of the Service Agreement. Any general terms and conditions of the Customer or of a third party referenced in the orders or otherwise are hereby rejected and excluded.
”Customer” means a legal entity that has concluded a Service Agreement for the provision of the Services with the Service Provider.
”Customer Material” means information or material transferred or made available by or on behalf of the Customer to the Service or to the Service Provider for the Service (including, for example, material and information provided via API interface).
”Professional Services” means professional services provided by the Service Provider to the Customer, such as software development, maintenance, training, coaching, integration, consulting and development services.
” Intellectual property rights ” mean copyrights, related rights (including e.g. rights to a database, directory, library, recording and photograph), patents, utility models, design rights, trademarks, business names, trade and company secrets, know-how or other registered or unregistered intellectual property rights.
” Users ” means the Customer’s employees or subcontractors who have the right to use the Service on behalf of the Customer in accordance with the Service Agreement.
” Party ” means the Customer and the Service Provider (together the ”Parties”).
”SaaS Service ” means the web-based Sitedrive service provided by the Service Provider for construction project scheduling and management, as well as other productized software services provided by the Service Provider to the Customer over the communications network.
”Identifier” means the Customer’s or User’s identifier, such as username and password, which are intended to enable the Customer’s and User’s access to the Service.
”Service” means the services provided by the Service Provider to the Customer based on the Service Agreement, such as SaaS Service and Professional Services. The definition of the Service also includes the software and related documentation and other material that may be delivered by the Service Provider to the Customer for the Service and /or used in the Service (such as API/SDK). For example, the usage restrictions regarding the Service also apply to such software, documentation and material.
” Service Fees ” mean the fees payable by the Customer to the Service Provider for the use of the Service.
”Service Provider’s Material” means the material provided or made available by the Service Provider to the Customer or User for the use of the Service or in connection therewith; any information, material and documentation resulting from the Professional Services, and other information or material defined by the contracting parties as Service Provider Material.
” Service Agreement ” means a written or electronic agreement between the Parties on the provision of the Service. These General Terms and Conditions are an integral part of the Service Agreement.
”Project” means an entity of planned construction work with project number, project team or an allocated project team.
”Error” means a material deviation of the Service from the then current service description.
USE OF THE SERVICE
2.1. Use rights
The Service Provider grants to the Customer a non-exclusive, non-transferable, non-assignable and non-sublicensable right to use the Service for the Customer’s Projects during the validity of and pursuant to the Service Agreement. The use right is subject to the Customer complying with the terms and conditions of the Service Agreement including, without limitation payment by the Customer of the Service Fees in accordance with the Service Agreement.
The Service and the special conditions that may apply to the Service are specified in the Service Agreement including its appendices. Third-party services and software that may be included in or related to the Service are subject to the terms and conditions of such third parties. The Service Provider is in no way responsible for third-party services or software offered through or in connection with the Service.
The Service Provider has the right to prevent the Customer or User from accessing the Service the Customer or a User is in breach of the Service Agreement or if the Service Provider reasonably suspects that the Customer or User has violated the terms of the Service Agreement.
The Customer may use software that may be related to the Service only in connection with the use of the Service. Upon termination or expiry of the Service Agreement, the Customer must either return or, at the request of the Service Provider, destroy the original and duplicate copies, data media and documentation at Customer’s own expense.
2.2. Usage restrictions
The Customer may use the Service only for Customer’s internal use, and the Customer has no right to resell, distribute or in any other way offer or make available the Service or its part to third parties. The Customer does not have the right to give or allow access to the Service to users other than Users authorised to use the Service in accordance with the Service Agreement.
The Customer and Users may not:
- Copy, modify, distribute, make available, rent or sublicense the Service or the Service Provider’s Material or otherwise give third parties access to the Service or the Service Provider’s Material;
- circumvent or attempt to circumvent the Service’s copy protections;
- reverse engineer the Service, unless mandatory legislation allows it;
- use the Service for purposes contrary to the Service Agreement, law or good practice.
2.3. General obligations of the Customer
The Customer must provide the Service Provider with sufficient and correct information for the provision of the Service and also otherwise contribute to the delivery of the Service. The Customer is responsible for the information and instructions provided by it, including that such information is correct, complete and up-to-date. The Customer is responsible for ensuring that the Service is suitable for the Customer’s purposes and that it meets the Customer’s requirements for the Service.
Customer shall acquire and maintain at Customer’s own risk and expense any devices, connections and software, which are necessary for the use of the Service in accordance with the system requirements defined for the Service. The Customer is responsible for the operation of such devices, connections and software, and for that the devices, connections or software do not cause harm to the Service, information security or to other customers of the Service Provider. Devices or software that may cause harm or interference must be immediately disconnected from the Service.
REGISTRATION AND SECURITY
3.1. Registration and acceptance of the Service Agreement
The person signing or otherwise accepting the Service Agreement on behalf of the Customer confirms that they have the right to represent the Customer defined in the Service Agreement.
The Customer must inform the Service Provider of the correct and up-to-date information required for contacting the Customer and for invoicing the Service. The Customer must notify the Service Provider immediately, should the information change.
The Customer and Users must keep the Identifiers intended for the use of the Service safe and secret and notify the Service Provider immediately if these have been used without permission or if the passwords have come to the knowledge of third parties. The Customer is responsible for all actions performed with the Customer’s Identifiers in the Service.
Identifiers are User-specific and their group use is prohibited. Identifiers shall not be disclosed to persons other than the authorised Users.
The Parties are responsible for ensuring that their own ICT environments, such as devices, communication networks, service production facilities and offices, are protected against information security risks in accordance with appropriate information security practices. Neither Party is responsible for the data security of the public communication network or any disturbances that may occur there. The Parties shall notify each other of any information security threats and breaches they may have detected, and shall take measures to minimize the consequences of the security breach without undue delay.
Both Parties are responsible for backing up and restoring their own data and files.
4.1. Rights to the Customer Material
The rights to the Customer Material belong to the Customer.
The Service Provider and its subcontractors have a non-exclusive, worldwide and royalty-free right to use the Customer Materials to provide the Service to the Customer.
The Service Provider has the right to prepare anonymized usage data and statistical data from the Customer Materials. All rights to such anonymized data belong to the Service Provider, including the right to use such data for the analysis and development of services. For the sake of clarity, it is stated that such anonymized data should not be used in a way that could identify the Customer or a third person.
For the sake of clarity, it is stated that when the Service has been sold to the Customer by a reseller, the rights belonging to the Service Provider described in this section 4 to the Customer Materials belong or are transferred to Sitedrive Oy and not to the reseller.
4.2. Responsibility for the Customer Materials
The Customer is responsible for ensuring that the Customer Material is error-free and contains correct and sufficient information in the correct format to produce and use the Service for the Customer’s purposes. The Service Provider does not check, correct or modify the Customer Material, but has the right to rely on its correctness. The Customer himself is obliged to make any necessary corrections, additions and modifications to the Customer Materials. The results of the Service, such as the views and snapshots it produces, are based on the Customer Material, and their reliability is completely dependent on the quality of the Customer Material.
The Service Provider has the right to charge any costs caused by the incorrectness or incompleteness of the Customer Material or through any other comparable reason attributable to the Customer.
The Customer is responsible for the Customer Material and that the Customer Material or its transfer to the Service Provider or its use in accordance with the agreement does not violate the rights of third parties, good practice or the legislation in force at any given time. The Customer confirms that it has obtained the necessary permits and consents for the transfer of the Customer Material for the provision and use of the Service. The Customer is also responsible for ensuring that the Customer Material does not cause harm or interference to the Services or its information security.
The Service Provider will hand over the Customer Materials to the Customer within 30 days of the Customer’s written request. The Customer Material is handed over in a commonly used electronic format. The Service Provider has the right to charge the Customer for handing over the Material in accordance with the Service Agreement. The Service Provider’s obligation to store Project specific Customer Material ends three months after the end of the Project and Service Provider’s obligation to store any Customer Material ends three months after the termination or expiry of the Service Agreement (whichever comes sooner), after which the Service Provider has the right to destroy the Customer Material, unless the Customer has requested its return. In addition to the above, the Service Provider has the right to destroy or preserve the Customer Material to the extent that the Service Provider is obliged to do so by law, regulation or official order.
PERSONAL DATA PROCESSING
5.1. Personal data collected by the service provider
Service Provider will collect and process personal data of the Customer and of the Users to the extent necessary for the purpose of providing the Service to the Customer and to the Users.
Such personal data includes, for example, name and contact information (such as email addresses and data related to Service Fees and payments). The Service Provider processes this information in accordance with its privacy statement.
5.2. Processing of personal data included in Customer Material
The Customer is responsible for ensuring that the Service Provider has the right to process the personal data stored by the Customer in the Service in order to provide the Service to the Customer in accordance with the Data Protection Act (1050/2018) and other laws, regulations and official regulations regarding the processing of personal data. The Customer is particularly responsible for having informed the Users about the collection and use of their personal data for the Service and for having obtained the necessary permits and consents from the persons whose personal data and other data (such as location data) are processed in or for the Service by the Service Provider.
The Customer is the controller of the personal data saved or uploaded into the Service by or for the Customer (e.g. by the Users) or that is generated from the use of the Service, and the Service Provider processes this personal data on behalf of the Customer as a data processor.
When the Service Provider processes personal data on behalf of the Customer:
- The Service Provider has the right to use sub-processors in the processing of the personal data. Based on the Customer’s written request, the Service Provider informs the Customer in writing of the subcontractors it uses. The processing of personal data carried by sub-processor is regulated by a written agreement, which obliges the sub-processor to comply with the corresponding obligations and commitments that apply to the Service Provider according to the Service Agreement and data protection legislation, and gives the Customer the same rights towards the sub-processor as those the Customer has towards the Service Provider.
- Personal data will not be transferred outside the EEA without the Customer’s consent. All international transfers of personal data must be carried out in accordance with valid legislation, unless the Parties agree otherwise.
- The Customer is responsible for ensuring that the Customer has the right to transfer personal data to the Service Provider in such a way that the Service Provider can legally process personal data in accordance with the Service Agreement on behalf of the Customer.
- The Service Provider informs without undue delay the Customer of all inquiries and questions from data subjects, data protection authorities or other authorities related to the processing of personal data stored by the Customer
- The Service Provider assists the Customer with the necessary technical and administrative measures to respond to information requests of data subjects and to address other legal rights of data subjects. The Service Provider shall have the right to charge fees in accordance with the principles set forth in the Service Agreement for such support.
- The Service Provider provides the Customer with the necessary information so that the Customer can show that it has taken care of its obligations regarding the processing of personal data according to the law.
- The Service Provider processes personal data only for the purposes of the Service Agreement and only in accordance with the written instructions given by the Customer in the Service Agreement or otherwise.
- Both Parties use technical and administrative measures for ensuring that personal data is not processed in violation of the law and that the security of personal data would not be compromised.
- The Service Provider must notify the Customer in writing of all data security breaches concerning the personal data stored by the Customer that have come to the Service Provider’s attention without undue delay.
- All personal data included in the Customer Data in the possession of the Service Provider is to be anonymized or destroyed after the end of the Service Agreement, after a reasonable return period, or immediately, if the Customer requests it in writing from the Service Provider or if applicable legislation requires it. The Service Provider informs the Customer at the end of the Service Agreement when the Customer Material will be destroyed or anonymized .
- The parties agree to cooperate in order to comply with the EU Data Protection Regulation (2016/679), if this applies to the processing of personal data by the Service Provider on Customer’s behalf during the validity period of the Service Agreement.
If necessary, the Parties conclude a separate agreement on the processing of personal data.
PROVISION OF THE SERVICE
6.1. Service delivery
The Service Provider endeavors to deliver the Service at the agreed time and informs the Customer of any anticipated delays. The Service Provider will use commercially reasonable efforts to ensure that the Service essentially complies with the service description. The Customer reports all Errors to the Service Provider’s user support as soon as reasonably possible after the Customer discovered the Error.
The Service Provider shall use commercially reasonable efforts to correct Errors within a reasonable time during the Service Provider’s or its subcontractor’s normal working hours.
Except as stated in this Section 6.1, the Service Provider does not give any other warranties about the quality, content or functionality of the Service.
The Service Provider is not responsible in any way for services provided to the Customer by a third party in connection with or related to the Service.
The Service Provider shall have the right to interrupt the Services for necessary maintenance breaks during which the Service may not be available to the Customer. The Customer is not entitled to compensation or reimbursement for service interruptions caused by maintenance, unless otherwise agreed separately in writing. Maintenance causing downtime may be necessary e.g. to install updates or changes to the Service or to maintain or repair the Service or for information security reasons. The Service Provider endeavors to notify the Customer in advance of such downtime and to carry out the maintenance in a manner to avoid unreasonable disruption to the use of the Service.
Service interruptions can also be caused by disturbances in third-party services, networks or devices. The Service Provider is not responsible for such disruptions or interruptions.
The Service Provider has the right, without consulting the Customer, to prevent the Customer’s access to the Service, if the Service Provider reasonably suspects that the Customer is burdening or using the Service in a manner that causes harm to the Service or its production.
6.3. Changes to the Service
The Service Provider has the right at any time to change or update the Service or to stop offering the Service or its feature without the Customer’s consent. The Service Provider endeavors to notify the Customer of essential changes affecting the use of the Service at least 30 days in advance or as soon as reasonably possible.
The Service Provider provides Users with user support in accordance with the Service Agreement.
Questions related to the use of the Service and notifications of Errors must be reported to the Service Provider’s user support using the contact information specified by the Service Provider.
SERVICE FEES, OTHER CHARGES AND PAYMENT
8.1. Service Fees
The Service Fees are agreed in the Service Agreement. If the price for a Service or a product has not been determined in the Service Agreement or otherwise, the price according to the Service Provider’s price list valid at the time of the order will be used for that Service or product. Unless otherwise agreed, the Service Fees will be invoiced monthly in advance. Professional Services provided against time-based Service Fees are invoiced monthly in arrears and Service Fees related to implementation or commissioning of the Service are charged when the Service Agreement is concluded or in connection with the implementation or commissioning. The Service Provider also has the right to separately charge usual and reasonable travel and accommodation expenses and daily allowances.
8.2 Payment term
The payment term for invoices is 14 days net from the date of the invoice. Interest on late payment is in accordance with the Finnish Interest Act. The Service Fees are stated without any applicable taxes, customs fees or other public fees or charges, and without possible bank charges or commissions which will be added to the prices and charged from the Customer.
Complaints regarding invoices must be submitted to the Service Provider within 7 days of receipt of the invoice.
Service Fees made will not be refunded to the Customer. If the Customer terminates the Agreement in the middle of the subscription period, the Service Fees paid for the subscription period will not be refunded.
8.3. Price Changes
The Service Provider has the right to change Service Fees annually in accordance with the change in the general cost of living index without notifying the Customer in advance.
In addition, the Service Provider has the right to increase the Service Fees or to add new features to the Service by notifying the Customer thereof in advance. The increased Service Fees will come into effect one month after the notification is sent. The increase has no effect on the Service Fees for the Projects that already have started before the Service Fee change was notified by the Service Provider. If the Customer does not accept the increase, the Customer has the right to terminate the Service Agreement to the end of then current subscription period (fixed term Service Agreements) or pursuant to the termination notice period (Service Agreements in force until further notice) by submitting a notice of termination to the Service Provider at the latest within 14 days of the price increase notification, in which case a Service Fee increase will not be applied to the remaining term for the Service in question. The Customer’s right to terminate does not apply to a price increase based on a change in the general cost of living index.
Each Party undertakes to keep confidential all materials and information received from the other Party in any form, which are marked as confidential or which must be understood as such (”Confidential Information”). The Party has the right
- use the Confidential Information only for the purposes of the Service Agreement;
- copy the Confidential Information only to the extent necessary for the purposes of the Service Agreement; and
- disclose Confidential Information only to such employees and subcontractors who have a need to know such Confidential Information for the purposes of the Service Agreement. The Party disclosing the Confidential Information is responsible for ensuring that such disclosees comply with the obligations set forth in this section 9.
However, the obligation of confidentiality does not apply to material and information,
- which is generally available or otherwise public without breach of confidentiality obligations; or
- which the Party has received from a third party without an obligation of confidentiality; or
- which was in the possession of the receiving Party without a confidentiality obligation before receiving it from the other Party; or
- which the Party has independently developed without using the Confidential Information received from the other Party; or
- which the Party is obliged to publish or disclose based on the law, regulation or other official order or court decision. A Party that discloses or will disclose Confidential Information based on this this item 5. shall notify the other Party as soon as possible.
The Party must immediately stop using the Confidential Information received from the other Party and, unless it is separately agreed to dispose of the material in question, return the material in question with all copies when the Service Agreement ends or when the Party no longer needs the material in question for the purpose of the Service Agreement. However, both Parties have the right to keep the copies required by law.
The rights and obligations set forth in this Section 9 shall survive the termination or expiry of the Service Agreement and shall remain in force for 5 years from the Effective Date, or if the Confidential Information is disclosed after the Effective Date, 5 years from the disclosure of the Confidential Information in question.
INTELLECTUAL PROPERTY RIGHTS
The Intellectual Property Rights in or pertaining to the Service, the parts and features of the Service, the software included in the Service, the Service Provider’s Materials and the new, modified and developed versions of all of the above belong exclusively to the Service Provider (or its licensors) and remain vested in them, including but not limited to source and other codes, user manuals, documents, training material and all other materials related to the Service. The Service Agreement does not transfer or license to the Customer Intellectual Property Rights, except for the Customer’s limited right to use the Service according to the Service Agreement against the agreed Service Fees during the validity of the Service Agreement.
The Customer may give the Service Provider feedback and development ideas regarding the Service. The Service Provider has the right (but not the obligation) to consider such feedback and development ideas in the development of the Service. Intellectual property rights to feedback and development ideas, as well as changes to the Service made based on them, are automatically assigned to the Service Provider. For the sake of clarity, the Customer has no obligation to submit feedback or development ideas.
For the sake of clarity, it is also stated that when the Service has been sold to the Customer by a reseller, the ownership and Intellectual Property rights described in this Section 10. Intellectual Property Rights and other rights (including Intellectual Property Rights regarding feedback and development ideas) belong or are automatically transferred to Sitedrive Oy and not to the reseller.
LIMITATION OF LIABILITY
Neither Party is liable under or in connection with the Service Agreement for any (i) indirect or consequential damages, such as for example lost profit, income or savings, or compensation paid to a third party, or (ii) changes or loss of information or the costs incurred as a result of such change or loss or the costs of a cover purchase, even if the Party would have been informed of the possibility of such damages.
The total maximum liability of the Service Provider towards the Customer (including possible refunds and reductions) is limited in all circumstances to a maximum of fifty percent of the Service Fees paid by the Customer to the Service Provider in the six months period prior to the event causing liability, for the Services that are affected by the event causing liability.
However, the limitations of liability do not apply to damages caused intentionally or through gross negligence or to damages or expenses suffered by the Service Provider referred to in an Appendix concerning the use of API/SDK (esp. section 3.2).
TERM AND TERMINATION
Unless otherwise agreed in the Service Agreement, the Service Agreement enters into force when both Parties have signed or otherwise accepted it and is valid until further notice with a mutual notice period of three months. Termination must be made in writing to the other Party. The notice period begins on the first day of the month following the delivery of the notice of termination.
The Service Provider can terminate the Service Agreement if the Customer goes into bankruptcy, liquidation, debt restructuring or becomes insolvent or is in material breach of the Service Agreement. The Customer may terminate the Service Agreement if the Service Provider is in material breach of the Service Agreement and does not remedy the breach within 30 days after the Customer has notified the Service Provider thereof and demanded termination of the Agreement. The Service Provider has the right to immediately terminate the Service Agreement if the Customer has not paid the overdue invoices within 14 days after receiving a written notice after the due date.
Sections of the Service Agreement, which by their nature are intended to survive the termination or expiry of the Service Agreement, shall so survive. Such sections include sections 9. Confidentiality, 10. Intellectual Property Rights, 11. Limitation of Liability and 13.8. Governing Law and Disputes.
All notices related to the Service Agreement must be made in writing or electronically and sent as a registered letter, by courier, or by e-mail to the address specified in the Service Agreement of the receiving Party. If the Party’s contact information changes, the other Party must be notified of this without undue delay.
A notice sent by e-mail is considered received on the next business day, a notice sent as a registered letter is considered received 5 days after the mailing date, and a notice sent via courier is considered received when it is delivered to the recipient.
The Service Provider has the right to assign its obligations hereunder to subcontractors. The Service Provider is responsible for the subcontractors’ work as for his own.
The Service Provider has the right to use the Customer’s name and logo in Service Provider’s general customer reference list on its website and marketing materials.
13.4. Interpretation of the Agreement
The Service Agreement constitutes the entire agreement between the Parties on the subject matter hereof.
If the Party does not exercise its rights under the Service Agreement, that Party is not considered to have waived such rights or to have lost them.
If a clause included in the Service Agreement is deemed to be invalid, void or otherwise illegal or unenforceable, it does not affect the validity of other clauses in the Service Agreement. Such an invalid clause shall be interpreted as being as close as possible to the written clause commercially, but valid.
The Service Provider has the right to assign the Service Agreement to its affiliate or to the transferee/buyer of the Service Provider’s business related to the Service Agreement without the Customer’s consent.
The Customer does not have the right to assign the Service Agreement to a third party without Service Provider’s written consent.
13.6. Changing the contract
The Service Provider can change these General Terms and Conditions by notifying the Customer of the change no later than thirty days before the changes come into effect, via customer bulletins, in the Service or otherwise in writing. When the General Terms and Conditions have been changed materially to the Customer’s detriment, the Customer has the right to terminate the Service Agreement to the end of then current subscription period (fixed term Service Agreements) or pursuant to the termination notice period (Service Agreements in force until further notice) by submitting a notice of termination to the Service Provider within 14 days of the notification regarding the change to the General Terms and Conditions. If the Customer terminates the Service Agreement as described above, the General Terms and Conditions apply unchanged for the remaining term for the Service in question. More, the Service Provider has the right to change the service descriptions attached to the Service Agreement in connection with the changes to the Services or specific terms and conditions related thereto.
Other changes to the Agreement shall be agreed between the Parties in writing.
13.7. Force majeure
If the performance of the Service Provider’s obligations is impossible or unreasonably difficult due to an unforeseen situation beyond the Service Provider’s reasonable control (”Force Majeure”), the Service Provider is entitled to stop the delivery of the Service and/or extend the delivery time without liability. If the performance of the Service has been interrupted due to Force Majeure for a period of more than one month, each Party has the right to terminate the Service Agreement with immediate effect without liability.
The Customer may not employ a person who is or has been employed by the Service Provider, who performs or has performed key tasks related to the Service in question, and may not enter into any other contract or otherwise agree on such an arrangement, the purpose of which is to acquire the work input of the person in question, before 6 months have passed since the termination or expiry of the Service in question or from the termination of the employment relationship, which ever ends earlier.
If the Customer is in breach of this Section 13.8, the Customer shall pay the Service Provider an amount corresponding to 6 months’ gross salary of the person in question as a contractual penalty.
However, the non-solicitation obligation does not apply if the employment of the person in question has ended for a reason attributable to the Service Provider or if the hiring of the person takes place on the person’s own initiative by responding to a public job advertisement.
13.8. Governing Law and Disputes
Finnish law applies to the contract excluding its conflict of law provisions. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply to the Agreement.
Disputes arising from this Agreement will be settled definitively in arbitration, in accordance with the arbitration rules of the Central Chamber of Commerce. The arbitration tribunal consists of one member. The place of arbitration is Helsinki. The language of the arbitration is English.